Saturday, December 31, 2011

In 2002, the Connecticut Supreme Court sided 4-3 with the City of New London and against Susette Kelo and other appellants. The Court upheld the right of New London to use eminent domain to transfer Kelo's and others residents' private land to the New London Development Corporation, whose comprehensive redevelopment plan included the construction of new headquarters by Pfizer Corporation. In 2005, Kelo et al. appealed the decision to the U.S. Supreme Court. The high court also decided in favor of the City of New London, 5-4. Joined by Justices Kennedy, Ginsburg, Souter and Breyer, Justice Stevens wrote the majority opinion. Joined by Justices Rehnquist, Scalia, and Thomas, Justice Sandra Day O'Connor wrote the principal dissenting opinion.

Justice O'Connor's opinion turns on what is called the "reverse Robin Hood" argument--that the Kelo decision would make it the norm, not the exception, to take from those with fewer resources and give to those with more resources, including large corporations and development firms in particular. The Founders cannot have intended this "perverse result" to the takings clause of the U.S. Constitution. When economic development is construed to be "public use," the "specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," O'Connor famously concluded.

Excerpts from O'Connor's opinion follow.

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.

. . . . Today nearly all real property is susceptible to condemnation on the Court's theory. In the prescient words of a dissenter from the infamous decision in Poletown, "[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner's, merchant's or manufacturer's property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a 'higher' use." . . . . This is why economic development takings "seriously jeopardiz[e] the security of all private property ownership." . . . .

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. "[T]hat alone is a just government," wrote James Madison, "which impartially secures to every man, whatever is his own." . . . (Mar. 29, 1792). . . . [Emphases added.]

42 states subsequently sided with Justice O'Connor's minority opinion and passed reform legislation limiting eminent domain. In New Hampshire, where Justice Souter had a primary residence and Justice Breyer maintained a vacation home, voters passed Constitutional Amendment 12-a by an overwhelming 85% majority with 100% state Senate support: "No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."

However, the current NH state statute dealing with eminent domain for utilities, RSA 371:1, is in need of updating to reflect the requirements of Article 12-a.